Qing Lin v. Eric Holder, Jr. , 736 F.3d 343 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2302
QING HUA LIN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 18, 2013 Decided: November 22, 2013
Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by published opinion. Judge Gregory wrote the
opinion, in which Judge Thacker and Senior Judge Hamilton
joined. Judge Thacker wrote a separate concurring opinion.
ARGUED: Joshua E. Bardavid, BARDAVID LAW, New York, New York,
for Petitioner. Jonathan Aaron Robbins, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Stuart F. Delery, Principal Deputy Assistant
Attorney General, Ernesto H. Molina, Jr., Assistant Director,
S. Nicole Nardone, Civil Division, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
GREGORY, Circuit Judge:
Qing Hua Lin petitions this Court for review of an order of
the Board of Immigration Appeals (“Board”) dismissing her appeal
from the Immigration Judge’s (“IJ”) order finding that she was
not eligible for asylum, withholding of removal, or deferral of
removal under the Convention Against Torture (“CAT”). For the
reasons stated below, we deny Lin’s petition for review.
I.
A.
Lin is a native citizen of the People’s Republic of China
(“China”). She illegally entered the United States near
Hidalgo, Texas on August 19, 2009. On October 6, 2009, the
Department of Homeland Security commenced removal proceedings
against Lin by issuing a notice to appear, charging her with
removability under § 212(a)(7)(A)(i)(I) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien
who, at the time of application for admission to the United
States, was not in possession of valid entry documents. Lin
then sought relief from removal in the form of asylum,
withholding of removal, and protection under the CAT. JA 535.
Following several hearings, the IJ issued an order and written
opinion denying Lin’s application and ordering her removed to
2
China. JA 50-65. Lin appealed to the Board, which affirmed the
decision of the IJ. Lin then timely appealed to this Court.
The disposition of this case turns primarily on
discrepancies between Petitioner’s statements at different
stages of the asylum process. Accordingly, we detail below the
relevant testimony and materials from Lin’s interviews,
hearings, and written application for asylum.
Border Patrol Interview, August 20, 2009
Lin was interviewed by a Border Patrol Agent immediately
upon being apprehended entering the country (the “Border Patrol
interview” or “interview”). During the interview, Lin stated
that she was not married and that she had one child. JA 233.
When asked what her purpose was for entering the United States,
she responded “[t]o avoid population control regulations in
China.” JA 229. When asked whether she feared persecution if
sent back to China, she indicated that she planned to have more
children, and that she would be forced to have an abortion or
undergo a tubal ligation if she became pregnant again. JA 235.
She also stated that she feared she would be unable to get
married if she was sterilized. Id. Finally, Lin explained that
because she had given birth out of wedlock, which is seen as
“anti-cultural” in China, she instructed her son to refer to her
as “Auntie.” Id.3
Credible Fear Hearing, September 18, 2009
By this time Lin had retained an attorney. JA 572. During
the hearing, and in contrast to the Border Patrol interview, Lin
stated that she was married to a man named Dehua Jiang, who
continued to reside in China with their son. JA 573. Notably,
she also stated that she left China because she had been forced
to undergo an unwanted abortion on January 24, 2008. JA 574.
This fact was not mentioned during Lin’s Border Patrol
interview. Following the abortion, her husband went into hiding
for fear that he would be sterilized and he encouraged Lin to
seek refuge in the United States. JA 575.
Asylum Application and Supporting Documents
On April 28, 2010, Lin submitted an application for asylum
and a written statement. The statement provided that Lin
married Jiang on September 8, 2004. JA 246. In 2005, four
months after the birth of her son, family planning officials
from the Chinese government forced Lin to have an IUD implanted
and submit to regular gynecological checkups. Id. The
statement also discussed the 2008 forced abortion. Id.In support of her asylum application, Lin also submitted
several documents: an abortion certificate from the First
Hospital of Fuzhou, a notice from Yang Zhong Village committee
requesting that Lin appear for an IUD and pregnancy checkup, and
a notice from Yang Zhong Village Committee notifying Lin that
4
she had violated the family planning regulations and fining her
10,000 yuan. JA 273-80. Lin also submitted a statement from
her mother-in-law, providing that Lin and her son were married
in 2004. JA 285. Her mother-in-law described Lin’s forced
abortion and how family planning officials continue to visit her
house on a regular basis looking for Lin and her husband. JA
285. Finally, Lin submitted a statement from her husband. He
provided that the two were married in September 2004 and that
the marriage was “permitted and blessed.” JA 294. He also
recounted the circumstances of Lin’s forced abortion and the
couple’s decision that she seek refuge in the United States. JA
294-95.
State Department Report on China
The government submitted a 2007 report from the United
States Department of State on China’s population control
policies. JA 26-27. The report stated that the policies were
no longer strictly enforced and that there have been few reports
of forced abortions or sterilizations in Fujian Province over
the last twenty years. Id.First Merits Hearing, August 31, 2010
Lin gave the following testimony in support of her asylum
claim before an IJ on August 31, 2010:
Lin married Jiang on September 8, 2004. JA 101. Their only
child, a son, was born on March 23, 2005. JA 102. Four months
5
after his birth, family planning officials came to her home and
took her to a birth control office to insert an IUD. JA 103-04.
Lin was instructed that she would have to attend seasonal check-
ups to ensure the IUD remained inserted and that she had not
become pregnant again. JA 103.
On January 24, 2008, after learning that Lin was pregnant
again, 1 five family planning officials came to Lin’s rented house
in Fuzhou City, forced her into a van, and performed an unwanted
abortion on her at a local hospital. JA 109-12. After the
procedure, she was told that she would have to pay a 10,000 yuan
fine, and that if she did not her husband would be arrested and
forcibly sterilized. JA 112.
When asked by the IJ whether she was given any documentation
regarding the abortion, Lin stated that originally she was not,
but a few days after the procedure she returned to the hospital
and requested an abortion certificate. JA 113. When asked why
she requested the document, she first stated that she wanted to
have “proof for the future,” and because she “assumed that
America has . . . human rights, and I think that certificate
will be useful in the future.” JA 114. The IJ then asked her
whether she was already planning to come to America, and she
1
Lin and her husband hired a private doctor to secretly
remove her IUD to allow her to become pregnant again. JA 294.
6
stated “not yet . . . I just assumed that this certificate would
be useful to me in the future.” JA 115. Under further
questioning, Lin then changed her answer, stating that she
requested the document so she could take a vacation from work.
Id. When the IJ noted that Lin was self-employed, she changed
her answer once again, stating that she was in fact planning on
applying for asylum in the United States at the time she
requested the documentation and thought it would be helpful for
that purpose. JA 116-117.
Status Conference and Submission of Additional Government
Evidence, November 16, 2010
The IJ held a status conference in the matter on November
16, 2010. At the hearing, the government requested that the
court consider additional evidence that was part of Lin’s file
but had not been discovered by the government’s attorneys until
after the close of evidence. JA 175. The additional evidence
consisted of the recorded notes from Lin’s September 20, 2009
Border Patrol interview. Id. Over Petitioner’s objection, the
IJ decided to accept the evidence and hold a second evidentiary
hearing so the parties would have an opportunity to address the
new evidence. Id.Second Merits Hearing, January 31, 2011
At the second hearing, Lin was asked why she told the
Border Patrol Agent during the interview that she was not
7
married. Lin responded, “[i]n our village, our practice is, if
you did not have the, you know, banquet, if you did not have the
Chinese ceremony, you really [are not] consider[ed] married.”
Id. When asked why she responded differently at the credible
fear hearing, she said that her attorney had told her in the
interim that “in the United States if you are registered at the
court . . . you are considered as married.” JA 181. In
essence, Lin blamed the contradictory testimony on a cultural
misunderstanding. Lin conceded, however, that she registered
her marriage with the Chinese government in 2004. JA 186.
Lin was also questioned why she did not mention the forced
abortion during the Border Patrol interview. In vague and non-
responsive answers, she indicated that the Agent conducting the
interview told her not to provide details of her claim and that
she could tell her full story to a judge later. JA 193-95. She
also stated that she did not think there was room on the Agent’s
form to record detailed answers. JA 193.
B.
On March 1, 2011, the IJ issued a decision denying Lin’s
applications for asylum, withholding of removal, and protection
under the CAT, and ordered her removed to China. JA 50-65. The
IJ found Lin not credible “in light of the inconsistencies,
implausibilities, and contradictions” in her testimony, her
application, and her statements during the Border Patrol
8
interview. JA 61. The IJ also found that Lin’s attempts to
explain the inconsistencies and omissions were “vague[], non-
responsive[][,] and did not provide credible explanations.” Id.Specifically, the IJ noted that Lin told the Border Patrol
Agent that she was not married and:
[S]he was afraid that she would be forced to have an
abortion or tubule [sic] ligation and that if she were
forced to have a tubule [sic] ligation, she was afraid
that she would never be able to get married. Despite
discussing her fear of a future forced abortion, [Lin]
did not tell the border patrol officer that she had
previously had a forced abortion. In marked contrast,
[Lin] testified in Court that she was already married
and had been forced to have an abortion.
JA 61. The IJ found Lin’s explanations for the inconsistencies
“wholly inadequate and incredible.” Id. The IJ noted that
Lin’s “cultural misunderstanding” explanation regarding her
marital status was undermined by the fact that during her first
hearing she repeatedly testified that she was married, and only
after she was confronted with her inconsistent testimony did she
“manufacture[] her explanation.” JA 62. The IJ also found that
Lin’s husband’s affidavit referring to their marriage as
“permitted and blessed” undercut Lin’s claim of a
misunderstanding.
Of even greater significance to the IJ, however, was Lin’s
failure to mention her forced abortion during her Border Patrol
interview. Id. The IJ explained:
9
Lin attempted to blame the omission on the border
patrol officer rushing her. [Lin] was repeatedly
evasive and unresponsive when asked directly whether
she told the border patrol officer that she had a
forced abortion. Only after being asked repeatedly
did [Lin] admit that she did not tell the border
patrol officer about her alleged forced abortion.
[Lin] attempted to explain that she wanted to tell the
officer about the abortion, but he told her that there
was no space for details and to tell the judge. The
Court finds this explanation entirely incredible. The
alleged forced abortion is not a detail, but rather is
the crux of [Lin’s] entire asylum claim. . . . It is
wholly implausible, therefore, that [Lin] would not
have mentioned an experience as pivotal and traumatic
as a forced abortion, when she had sufficient
opportunity to describe other details about her
alleged fear of returning to China.
Id.The IJ also noted that he had reservations about Lin’s
credibility even before the omission regarding the forced
abortion came to light. Id. Specifically, the IJ found
implausible Lin’s explanations for why she obtained the abortion
certificate. JA 63. The IJ noted that Lin changed her
testimony on this issue several times, first stating that she
requested the certificate because she knew the United States
protected human rights, then stating she needed it in order to
take a vacation, and then finally reverting back to her original
position. Id. 2
2
The IJ also mentioned two additional areas of concern with
Lin’s testimony. First, the IJ thought Lin’s statements
regarding where she and her husband lived to be confused and
inconsistent. Id. According to the IJ, Lin first testified
(Continued)
10
Given these inconsistencies, the IJ determined that Lin’s
testimony was not credible. JA 64. Noting that an adverse
credibility determination can be overcome if the alien can
independently prove past persecution, the IJ determined that Lin
had not provided sufficient evidence to prove she was the victim
of a forced abortion. Id. The IJ discredited the abortion
certificate as unauthenticated and suspect in light of Lin’s
testimony, and noted the State Department’s report that
population controls are no longer strictly enforced in China.
Id. Accordingly, the IJ denied all of Lin’s claims.
The Board agreed with the IJ’s decision in all pertinent
parts and adopted its decision denying Lin’s claims. JA 3-4.
It held that the IJ provided “specific and cogent reasons” for
that they moved to Fuzhou City and rented a room there in July
2007 in order to secretly remove her IUD and have another child.
Id. On her asylum application, however, she listed her address
as Fuzhou City beginning in 2004. Id. Lin testified to the
court that up until 2007 she actually lived with her parents in
Ming Ho County, and her husband would sometimes visit her there.
Id. The IJ stated that he found Lin’s testimony about her
residence “to be difficult to follow and generally inconsistent.
Although not a significant inconsistency in [her] testimony, her
changing account of where she and her husband lived further
undermines her general credibility.” Id.Secondly, the IJ thought it noteworthy that Lin did not
provide a letter from her parents to corroborate her testimony
that family planning authorities visited their home every few
days looking for her. Id. The IJ found the lack of
corroboration unreasonable given Lin’s testimony that she
remains in regular contact with her parents. Id.11
the adverse credibility determination, repeating the IJ’s
concerns with Lin’s testimony. JA 3. The Board also agreed
that Lin failed to provide independent evidence proving that she
suffered past persecution. JA 4. Additionally, the Board
rejected Lin’s argument that the IJ’s decision allowing the
government to submit additional evidence violated her due
process rights. Id. The Board noted that IJs have the
authority to set and extend deadlines and that Lin was given an
opportunity to respond to the new evidence. Id.II.
A.
Where the Board affirms and adopts the IJ’s decision, we
review both decisions as the final agency action. Marynenka v.
Holder, 592 F.3d 594, 600 (4th Cir. 2010). We are obliged to
uphold the agency’s determination unless it is “manifestly
contrary to the law and an abuse of discretion.” Lizama v.
Holder, 629 F.3d 440, 444 (4th Cir. 2011). The agency abuses
its discretion “if it fail[s] to offer a reasoned explanation
for its decision, or if it distort[s] or disregard[s] important
aspects of the applicant’s claim.” Tassi v. Holder, 660 F.3d
710, 719 (4th Cir. 2011). Factual determinations are reviewed
only to ensure they are supported by substantial evidence.
Marynenka, 592 F.3d at 600. Substantial evidence exists to
12
support a finding “unless the evidence . . . was such that any
reasonable adjudicator would have been compelled to conclude to
the contrary.” Id. Review of the agency’s overall conclusion
that an applicant is ineligible for asylum is similarly limited
to whether the applicant’s evidence “was such that a reasonable
factfinder would have to conclude that the requisite fear of
persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). This standard is very deferential, and does not permit
a re-weighing of the evidence. See Niang v. Gonzales, 492 F.3d
505, 511 (4th Cir. 2007) (“[If] the record plausibly could
support two results: the one the IJ chose and the one [the
petitioner] advances, reversal is only appropriate where the
court find[s] that the evidence not only supports [the opposite]
conclusion, but compels it.”) (quoting Balogun v. Ashcroft, 374
F.3d 492, 507 (7th Cir. 2004)) (internal quotation marks
omitted).
B.
The INA vests in the Attorney General the discretionary
power “to grant asylum to aliens who qualify as ‘refugees.’”
Dankam v. Gonzales, 495 F.3d 113, 115 (4th Cir. 2007). A
refugee is “someone ‘who is unable or unwilling to return to’
his native country ‘because of persecution or a well-founded
fear of persecution on account of . . . political opinion’ or
other protected grounds.” Id. (quoting 8 U.S.C.
13
§ 1101(a)(42)(A)). Asylum applicants may satisfy their burden
of proving that they meet the definition of a refugee by
“showing either that [they were] subjected to past persecution
or that [they have] a ‘well-founded’ fear of future persecution
‘on account of race, religion, nationality, membership in a
particular social group, or political opinion.’” Marynenka, 592
F.3d at 600 (quoting 8 C.F.R. § 208.13(b)(1)). A person who was
“forced to undergo” an abortion or sterilization “shall be
deemed to have a well-founded fear of persecution on account of
political opinion.” 8 U.S.C. § 1101(a)(42).
Aliens face a heightened burden of proof to qualify for
withholding of removal. Dankam, 495 F.3d at 115. The alien
must establish a “clear probability” that she would suffer
persecution if repatriated. Id. If an alien meets this
heightened burden, withholding of removal is mandatory. Id.Lin also seeks protection from removal under the CAT, which
requires aliens to demonstrate “that it is more likely than not
that [they] would be tortured if removed to the proposed country
of removal,” regardless of the grounds for the torture. Id.III.
A.
Lin first contends that substantial evidence does not
support the agency’s adverse credibility determination.
14
Applicants can establish their eligibility for asylum simply by
providing credible testimony about their experiences.
Marynenka, 592 F.3d at 601 (citing 8 C.F.R. § 208.13(a)).
Review of an adverse credibility determination is limited to
ensuring that substantial evidence exists to support it.
Dankam, 495 F.3d at 119. “We accord broad deference to the
agency’s credibility determination. This deference, however, is
not absolute, for the agency must provide specific, cogent
reasons for making an adverse credibility determination.”
Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011). “We have
recognized that omissions, inconsistencies, contradictory
evidence and inherently improbable testimony are appropriate
bases for making an adverse credibility determination.” Id.Even the existence of only a few such inconsistencies can
support an adverse credibility determination. Id. Following
passage of the REAL ID Act of 2005, an inconsistency can serve
as a basis for an adverse credibility determination “without
regard to whether [it] goes to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
As recounted above, the agency gave multiple reasons for
the adverse credibility determination. Chief among them,
however, were the inconsistencies between Lin’s statements
during the Border Patrol interview and her later testimony and
application materials. Lin gave shifting, contradictory
15
accounts of her marital status and omitted any mention of her
forced abortion. After reviewing the record, we agree with the
agency that these omissions and inconsistencies provide
sufficient justification for the adverse credibility
determination.
The foundation of Lin’s claim is that she was subjected to
a forced abortion; however, when interviewed upon entering the
country, she failed to mention the incident at all. We are
highly skeptical of such an important omission. As the agency
noted, the forced abortion is not a detail, but rather is the
very heart of Lin’s claim for asylum. The traumatic details of
the incident as later described by Lin, including being forced
into a van and whisked away to the hospital, make it wholly
implausible that she would fail to even mention the incident
during the interview. See Xiao v. Mukasey, 547 F.3d 712, 717
(7th Cir. 2008) (holding a petitioner’s failure to mention a
past forced abortion during an airport interview sufficient to
warrant an adverse credibility determination). The omission is
particularly suspect in light of the fact that Lin specifically
referenced a fear that she would have to undergo future forced
abortions if she was returned to China, but failed to mention
the fact that she previously had been subjected to the very same
experience.
16
Lin’s explanation for the omission –- that the Border
Patrol Agent told her he could not record the details of her
claim -- is undermined by the fact that Lin was able to mention
several other details of her past, such as the fact that she was
unmarried, had a child out of wedlock, and instructed her son to
refer to her as “Auntie.” Perhaps most importantly, Lin
acknowledged that she obtained the abortion certificate with an
eye toward using it to help her gain asylum in the United
States. This indicates that she was already aware of the
significance of the incident with regard to a future asylum
claim, making her omission all the more suspect.
We also agree with the IJ’s decision discounting Lin’s
explanation that a cultural misunderstanding accounted for her
inconsistent testimony regarding her marital status. Her
explanation is undermined by the fact that she repeatedly and
unqualifiedly referred to herself as married throughout the
asylum process, only to change course when confronted with her
earlier, inconsistent testimony. Further undercutting her claim
are her husband’s affidavit attesting that the couple’s marriage
was “permitted and blessed,” and the statement from her mother-
in-law referring to the couple as married. Taken together,
these facts give ample support for the IJ’s determination that
Lin’s testimony was not credible.
17
In concluding that, under the facts and circumstances of
this case, Lin’s inconsistencies and omissions between her
Border Patrol interview and her later testimony are sufficient
to support the agency’s adverse credibility determination, we
note our hesitation in relying so extensively on statements made
in such a setting. Most so-called “airport interviews” are
brief affairs given in the hours immediately following long and
often dangerous journeys into the United States. These
circumstances caution against basing an adverse credibility
determination solely on inconsistencies and, especially,
omissions that arise out of statements made in such
environments. As evidenced by the questions asked of Lin, the
purpose of these interviews is to collect general identification
and background information about the alien. JA 229-30. The
interviews are not part of the formal asylum process, and are
conducted without legal representation and before most aliens
are aware of the elements necessary to support a claim for
asylum. Requiring precise evidentiary detail in such
circumstances ignores the reality of the interview process and
places an unduly onerous burden on an alien who later seeks
asylum.
It is for these reasons a significant number of our sister
circuits have limited the extent to which credibility
determinations may be based on airport interviews. See, e.g.,
18
Moab v. Gonzales, 500 F.3d 656, 660-61 (7th Cir. 2007)
(“[A]irport interviews . . . are not always reliable indicators
of credibility. . . . [I]nterviews in which the questions
asked are not designed to elicit the details of an asylum claim,
or the INS officer fails to ask follow-up questions that would
aid the alien in developing his or her account [are less
reliable].”); Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2nd
Cir. 2004) (Sotomayor, J.) (“The airport interview is an
inherently limited forum for the alien to express the fear that
will provide the basis for his or her asylum claim, and the BIA
must be cognizant of the interview’s limitations when using its
substance against an asylum applicant.”); see also Joseph v.
Holder, 600 F.3d 1235, 1243 (9th Cir. 2010) (citing Singh v.
INS, 292, F.3d 1017, 1021 (9th Cir. 2002)); Tang v. Attorney
General, 578 F.3d 1270, 1279 (11th Cir. 2009); Zubeda v.
Ashcroft, 333 F.3d 463, 477 (3rd Cir. 2003). We hereby note our
general agreement with the concerns expressed by these and other
circuits over the agency’s unqualified reliance on statements
made in airport interviews.
With these considerations in mind, we repeat why they fail
to rescue Lin’s claim for asylum. Lin’s allegation of a forced
abortion is not a minor evidentiary detail whose absence can be
overlooked, it is the very core of her claim. Moreover, her
acknowledgment that she requested documentation of the procedure
19
for the express purpose of supporting a future asylum claim
indicates that she understood the importance of the incident.
We therefore simply cannot countenance her complete failure to
mention it during her interview. We also note that Lin’s
testimony regarding her marital status was not a mere omission,
but a direct contradiction for which she later was unable to
provide a believable explanation.
We also agree with the agency’s assessment that Lin’s
demeanor and non-responsiveness during questioning on certain
topics support the adverse credibility determination. For
example, Lin’s testimony as to why she requested the abortion
certificate was initially hesitant and confused. As explained
above, she changed course several times before finally admitting
that she thought the certificate would be helpful in supporting
a future asylum claim. JA 115. Similarly, Lin gave a series of
non-responsive answers to direct questions from the IJ asking
whether she told the Border Patrol Agent about the forced
abortion. JA 192-95. Only under repeated questioning did she
acknowledge that she did not mention the procedure. Id. Lin’s
dubious testimony in these areas is especially significant given
that they relate directly to the forced abortion, a topic about
which there is already considerable question.
In sum, far from compelling a contrary result, the evidence
in this case reliably supports the agency’s adverse credibility
20
determination. See Niang, 492 F.3d at 511. The IJ provided
specific and cogent reasons for the decision, and we will not
disturb the result in the absence of convincing evidence to the
contrary. 3
B.
Although adverse credibility determinations are generally
fatal to an asylum claim, an applicant may still prevail if she
can prove actual past persecution through independent evidence.
Camara v. Ashcroft, 378 F.3d 361, 369 (4th Cir. 2004). We
conclude that the agency properly reviewed the record and
determined that Lin failed to provide independent evidence
demonstrating past persecution.
As discussed above, the abortion certificate provided by
Lin is suspect in light of her unreliable testimony. In
addition, her evidence of a fine for a “violation of family
planning regulations,” which by itself is hardly demonstrable
proof that she suffered a forced abortion, is countered by
reliable evidence from the Department of State that family
3
However, we note our disagreement with the agency’s
determination that Lin’s testimony about her place of residence
in China was inconsistent or misleading. Likewise, we find no
support for the agency’s reliance on Lin’s failure to provide a
letter from her parents attesting that Chinese officials
continue to visit their home in search of Lin and her husband
when she provided a letter from her mother-in-law attesting to
precisely the same facts. In light of the larger issues with
Lin’s claim, however, these errors of the agency were harmless.
21
planning regulations are no longer strictly enforced in the
area. See Suarez-Valenzuela v. Holder, 714 F.3d 241, 248 (4th
Cir. 2013) (noting that State Department reports are “highly
probative evidence” of conditions in foreign countries) (quoting
Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir. 1999)). The agency
also considered the affidavit from Lin’s husband, but determined
that it in fact hurt Lin’s claim by contradicting her testimony
regarding the couple’s marital status. In any event, we have
previously held that “evidence offered as corroborating evidence
[must] be objective . . . for it to be considered by the
immigration judge and BIA. Letters and affidavits from family
and friends are not objective evidence in this context.”
Djadjou v. Holder, 662 F.3d 265, 276 (4th Cir. 2011) (citation
and quotation marks omitted). And although Lin is correct in
noting that the agency did not specifically analyze every single
item in the record, the IJ cataloged all of the evidence at the
start of his opinion and reached his conclusion in light of “the
totality of the evidence.” Gandziami-Mickhou, 445 F.3d at 358.
We therefore hold that the agency’s finding was supported by
substantial evidence and is not manifestly contrary to law.
Djadjou, 662 F.3d at 275.
Accordingly, we affirm the agency’s denial of the
Petitioner’s claim for asylum and for protection under the CAT.
22
She also necessarily fails to meet the more stringent burden of
proof required to qualify for withholding of removal.
IV.
Finally, Lin argues that her due process rights were
violated by the IJ’s decision allowing the government to submit
supplemental evidence after the August 31, 2010 merits hearing.
Aliens are entitled to due process of law in deportation
proceedings. Demore v. Kim, 538 U.S. 510, 523 (2003) (citing
Reno v. Flores, 507 U.S. 292, 306 (1993)). A petitioner’s due
process rights are violated when she is not “accorded an
opportunity to be heard at a meaningful time and in a meaningful
manner,” such that she did not “receive a full and fair hearing
on [her] claims.” Rusu v. United States I.N.S., 296 F.3d 216,
320 (4th Cir. 2002).
Lin’s argument is without merit. First, IJs have
discretionary authority to set and extend deadlines for the
submission of evidence in their courts. See 8 C.F.R.
§ 1208.13(a). Second, the IJ held an additional hearing to
allow the new evidence to be fully examined and give Lin an
opportunity to explain her prior statements. The parties were
afforded several months to prepare for the hearing. In light of
this, Lin has not shown how the IJ’s decision limited her right
23
to be heard in a meaningful manner. We therefore reject her due
process argument.
V.
For the reasons stated, we deny Lin’s petition for review.
PETITION DENIED
24
THACKER, Circuit Judge, concurring:
This court’s review of the agency’s adverse
credibility determination entails a relatively simple inquiry:
whether substantial evidence, exemplified by “specific, cogent
reason[s],” exists to support the agency’s findings. Singh v.
Holder, 699 F.3d 321, 328 (4th Cir. 2012) (alteration in
original). Here, although the IJ identified a host of secondary
factors that negatively impacted Lin’s credibility, he
identified two primary reasons -- each stemming from Lin’s
initial border interview -- for his adverse credibility finding:
(1) the abortion omission and (2) the marriage discrepancy.
Although I find the circumstances of the interview questionable,
and I am of the view that such border interviews should be
considered with caution, I ultimately agree with my colleagues’
conclusion that the agency’s findings in this case are supported
by substantial evidence. For this reason, and because I agree
with the majority’s analysis as to the other issues on appeal, I
concur.
I.
A so-called “airport” or “border” interview takes
place “when an alien is deemed inadmissible immediately upon
entering the United States and indicates an intention to apply
for asylum or a fear of persecution.” Diallo v. Gonzales, 445
F.3d 624, 631 (2d Cir. 2006). As my colleagues recognize, the
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circuit courts of appeals have uniformly held that these
particular interviews should be carefully scrutinized for
reliability before being utilized by the fact-finder to evaluate
an applicant’s credibility. See, e.g., Joseph v. Holder, 600
F.3d 1235, 1243 (9th Cir. 2010); Tang v. Attorney General, 578
F.3d 1270, 1279 (11th Cir. 2009); Moab v. Gonzales, 500 F.3d
656, 660-61 (7th Cir. 2007); He Chun Chen v. Ashcroft, 376 F.3d
215, 223-24 (3d Cir. 2004); Ramsameachire v. Ashcroft, 357 F.3d
169, 179 (2d Cir. 2004). The reason for this special attention
is straightforward:
The interview takes place immediately after an alien
has arrived in the United States, often after weeks of
travel, and may be perceived by the alien as coercive
or threatening, depending on the alien’s past
experiences. Moreover, at the interview, the alien is
not represented by counsel, and may be completely
unfamiliar with United States immigration laws and the
elements necessary to demonstrate eligibility for
asylum. Finally, because those most in need of asylum
may be the most wary of governmental authorities, the
BIA and reviewing court must recognize, in evaluating
the statements made in an interview, that an alien may
not be entirely forthcoming in the initial interview.
Ramsameachire, 357 F.3d at 179.
In Ramsameachire, one of the leading decisions in this
area, the Second Circuit set forth a non-exhaustive list of
factors for assessing the reliability of airport interviews:
First, a record of the interview that merely
summarizes or paraphrases the alien’s statements is
inherently less reliable than a verbatim account or
transcript. Second, similarly less reliable are
interviews in which the questions asked are not
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designed “to elicit the details of an asylum claim,”
or the INS officer fails to ask follow-up questions
that would aid the alien in developing his or her
account. Third, an interview may be deemed less
reliable if the alien appears to have been reluctant
to reveal information to INS officials because of
prior interrogation sessions or other coercive
experiences in his or her home country. Finally, if
the alien’s answers to the questions posed suggest
that the alien did not understand English or the
translations provided by the interpreter, the alien’s
statements should be considered less reliable.
Id. at 180 (internal citations omitted). * Importantly, the
Second Circuit “do[es] not regard these factors as essential to
be assessed in every case, but simply as helpful matters to be
considered where appropriate.” Guan v. Gonzales, 432 F.3d 391,
396 (2d Cir. 2005).
II.
In this case, I believe several of the factors
outlined in Ramsameachire counsel in favor of scrutinizing Lin’s
initial interview with a particularly critical eye. I detail
these factors not to disparage the majority’s reasoning, but to
emphasize the need to approach these interviews with extreme
caution.
*
The Second Circuit derived these factors from two Third
Circuit decisions, Senathirajah v. INS, 157 F.3d 210 (3d Cir.
1998) and Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998),
and its reasoning has been approved by several other circuit
courts of appeals. See, e.g., Moab, 500 F.3d at 661 (considering
the Ramsameachire factors); Singh v. INS, 292 F.3d 1017, 1022
(9th Cir. 2002) (considering the same Senathirajah and
Balasubramanrim factors).
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As a threshold matter, the discrepancies noted by the
IJ are derived primarily from the handwritten notes of the
translator contained in the document entitled “Translator
Questions.” Although portions of the document reflect Lin’s
verbatim responses to the questions asked, other portions slip
into the third person and thus appear to be the translator’s own
“summar[ry]” or “paraphrase[]” of Lin’s statements.
Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004).
Second, the Translator Questions were not designed “to
elicit the details of an asylum claim,” nor is there any
evidence the questioning officer “ask[ed] follow-up questions
that would aid [Lin] in developing . . . her account.”
Ramsameachire, 357 F.3d at 180. For example, the border patrol
agent asked Lin, “If you are sent back to your country, do you
fear that you will be persecuted or tortured?” JA 235. This
question is directed at future –- not past –- persecution, i.e.,
Lin’s fears with respect to being “sent back” to China. Lin’s
answer, although muddled, reflects her desire to have more
children and her belief “she would be forced into abortion or
[tubal] ligation” in China. Id. The documents from the border
interview do not indicate the agent asked Lin any follow-up
questions with respect to this “future fear” question, nor do
they indicate she was asked any questions at all with respect to
past persecution. Rather, the translator’s questions came from
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a pre-printed worksheet focused on obtaining basic identifying
and immigration information. This perfunctory series of
questions is a fairly archetypal border interview –- and the
reason so many courts have stressed that such an interview is
not the equivalent of an application for asylum. See, e.g.,
Singh v. INS, 292 F.3d 1017, 1023 (9th Cir. 2002) (an airport
interview “d[oes] not necessarily contain questions ‘designed to
elicit the details of an asylum claim’” (quoting Balasubramanrim
v. INS, 143 F.3d 157, 162 (3d Cir. 1998)).
Finally, the overall circumstances of Lin’s border
interview deserve mention. She was seized by armed agents
immediately after crossing the Rio Grande, handcuffed, and
transported by police car to the border patrol station. She
testified she had never seen a firearm before and described in
detail the terror she felt during the initial detention and
questioning. If Lin’s subsequent account of her experience at
the hands of the Chinese government is to be believed, she may
well have had valid reasons to be less than forthcoming with
governmental authorities in such a situation. See
Ramsameachire, 357 F.3d at 179.
In this case, the IJ, albeit not in so many words,
acknowledged each of the above circumstances and concluded,
nevertheless, that the border interview was sufficiently
reliable so as to serve as a basis for his adverse credibility
29
determination. The record here does not compel a contrary
result. See Niang v. Gonzales, 492 F.3d 505, 511 (4th Cir.
2007) (“[W]here the record plausibly could support two results:
the one the IJ chose and the one [the petitioner] advances,
reversal is only appropriate where the court find[s] that the
evidence not only supports [the opposite] conclusion, but
compels it.” (alterations in original) (internal quotation marks
and citation omitted)). I also observe that, even if we were to
follow the lead of the Eleventh Circuit in distinguishing
between simple omissions and impermissible contradictions in the
context of border interviews, see Tang v. Attorney General, 578
F.3d 1270, 1279 (11th Cir. 2009), Lin has offered no argument
with respect to the IJ’s reliance on the direct contradiction
present in her marital status testimony. Inasmuch as this
contradiction alone, coupled as it is with the myriad secondary
factors identified by the IJ, would be sufficient to support the
agency’s findings, see Djadjou v. Holder, 662 F.3d 265, 273-74
(4th Cir. 2011), I see no grounds for reversing the credibility
determination in this case.
III.
The issue in the present case, as in so many
immigration cases, turns on the standard of review. While the
IJ could have -- and perhaps should have -- engaged in a more
detailed analysis of his reasons for relying on the border
30
interview, I am satisfied the record of this case reflects that
the appropriate factors were adequately considered. I thus
concur in denying the petition for review.
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